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Watch Out: Here Comes the “New” NLRB

Labor & Employment Alert05/18/11 Dawn C. Valdivia, David B. Kern

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The National Labor Relations Board ("NLRB") has recently issued several controversial decisions and engaged in other actions that many view as pro-union activism. This alert discusses recent Board decisions expanding the Board's reach in penalizing employers for "chilling" protected concerted activity. It also discusses other recent actions addressing issues such as surreptitious recordings, non-employee access, union information requests, and enhanced remedies in union organizing campaigns and first contract bargaining. Finally, it provides guidance for adjusting policies and procedures in light of the Board's "new" direction.

The current four-member Board (a full compliment would have five Senate-confirmed members) consists of three Democrats and one Republican. Democrat Member Craig Becker, a strong supporter of the Employee Free Choice Act, has been the most outspoken about the Board's power to make changes administratively, or through case decisions, without having to amend the National Labor Relations Act ("NLRA"). The Board's Acting General Counsel, Lafe Solomon, has followed suit. All employers must stay current on recent Board decisions and rule changes to avoid violating the law.

The Board's Attack on Actions That Could "Chill" Protected Concerted Activity.

The NLRA gives employees the right to engage in protected concerted activity, which is activity engaged in with or on the authority of other employees for mutual aid or protection relating to wages, hours and other employment conditions. Generally, an employer violates the NLRA when it retaliates against employees for engaging in protected concerted activity. However, two recent decisions illustrate the Board's expanding reach to penalize employers for actions that might "chill" protected concerted activity before it occurs.

In Parexel International, LLC, 356 NLRB No. 82 (2011), the Board found the employer violated the NLRA when it fired an employee in - what the Board called - a "pre-emptive strike" intended to prevent her from engaging in protected concerted activity, even though the employee had not yet done so. In connection with workplace rumors of favorable treatment toward a group of transferred employees, an employee was fired after she asked about pay rates for the group and also told a supervisor she believed the transferees were being treated favorably, and that the other employees should take steps to better their wages. The Board ordered her reinstated with back pay, ruling that an employer violates the law if it acts to prevent protected activity or to "nip it in the bud," even though protected activity has not yet occurred. Dissenting Board Member Hayes described the ruling as "unprecedented."

In Jurys Boston Hotel, 356 NLRB No. 114 (2011), the Board refused to sustain the results of a decertification election based on employee handbook rules that it concluded could have chilled protected activity. The handbook rules included a no solicitation or distribution policy, a no loitering policy, and a grooming policy banning button wearing. The Board found the mere existence of these rules sufficient to overturn the election results despite the following evidence: (1) the employer did not enforce the rules during the election; (2) there was no evidence employees were actually deterred from engaging in protected concerted activity; (3) the Union was aware of and never objected to the handbook rules; and (4) the handbook contained a general disclaimer to employees informing them of their rights under the NLRA, which superseded "any possible interpretation of the rules" in the handbook.

Seminar on "New"
NLRB and Changes in Labor Law

Join us while we discuss the new NLRB appointments by President Obama, the significant changes in Board law and procedure that have already occurred as a result of the new Board, and more changes that are likely to come in the near future. A seminar/webinar is available at our Wisconsin offices. Information is available here.

The Board's Catch-22 for Employers.

The Board recently held that an employer violated the NLRA by discharging an employee for secretly recording a meeting with his supervisor and by issuing a rule that prohibited employees from making secret audio recordings in the workplace. Stevens Media, LLC, 356 NLRB No. 63 (2011). Ironically, the Board found the employer's termination decision was unlawful because the employer did not, at the time, have a rule prohibiting secret recordings. Yet it also struck down the employer's newly promulgated rule barring such recordings. The Board struck down the rule because it had been promulgated in response to the employee's protected conduct and because it was overly broad. Additionally, the Board held the employee was engaged in "protected concerted activity" because he had consulted with other employees before recording the meeting. Although the Board noted that concerted activity can lose its protection if it is "egregious," the Board found the employee's secret recording was not so egregious that it lost the NLRA's protection.

What's Next?

Other aggressive pro-union actions by the Board appear to be in the works:

In requesting briefs in Roundy's, Inc., 356 NLRB No. 27 (2010), the Board indicated it may re-examine its standard for finding unlawful discrimination against union organizers in connection with access to employers' property, perhaps broadening those rights of access.

In Stephens Media, LLC, 356 NLRB No. 63, the Board invited briefs regarding the meaning of "witness statement" in terms of a union request for information. For more than 30 years, the Board has unambiguously held the general obligation of an employer to honor union information requests "does not encompass the duty to furnish witness statements." Anheuser-Busch, Inc., 237 NLRB 982, 985 (1978). The Board's invitation indicates a likely narrowing of the definition of "witness statement," thereby making more statements subject to disclosure to the union.

Acting General Counsel Solomon has also taken measures to provide greater remedies for unions and employees seeking to unionize. For example:

In cases alleging that an employer has discharged employees as an attempt to "nip" a union organizing campaign "in the bud," the Board will not await an NLRB hearing, which could take months or years; the Board will go immediately to federal court to seek an injunction for immediate reinstatement of the terminated employees. General Counsel Memorandum 10-07.

The Board can request that union representatives be allowed increased employee access, including meeting with assembled employees in the workplace on paid work time. General Counsel Memorandum 11-01.

In cases alleging unfair labor practices that delay first contract bargaining, the Board may order 6-12 month extensions of the "certification year" following a union election victory and impose bargaining schedules to remedy cases alleging an employer has purposefully delayed bargaining. Regional offices can impose a bargaining schedule requiring 24 hours of bargaining per month, with a six-hour per session requirement. General Counsel Memorandum 11-06.

What's an Employer to Do?

All employers, and not just those who already have unions, should make themselves aware of each of the Board's recent decisions and actions, and train their managers and supervisors to ensure compliance. Additionally, employers should review and update all policies, including those concerning solicitation and distribution, loitering, electronic communications and internet use, confidentiality, and off-duty conduct. Employers should also review how those policies are being enforced. A well-drafted policy is worthless if it is not enforced or if it is inconsistently applied. It is equally important to ensure all discharge decisions are properly documented, are consistent with past practice, and, where appropriate, are preceded by progressive discipline.

Finally, listen to and communicate with employees. Studies show that the best organizations are those that effectively communicate, in both directions. Poor communication is the reason most employers find themselves subject to union organizing campaigns, and it is even more of a factor than non-competitive wages and benefits.